Judicial Review of Prison Quasi-judicial Hearings Under Rule 106.5
| Publication year | 2015 |
| Pages | 37 |
Articles
The Civil Litigator
Judicial Review of Prison Quasi-Judicial Hearings Under Rule 106.5
By Barbara Wiederstein.
The Civil Litigator articles address issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year.
This article highlights the procedural and substantive requirements of actions filed under Rule 106.5 seeking judicial review in district court of the quasi-judicial decisions of the Colorado Department of Corrections.
Historically, quasi-judicial hearings conducted by the Colorado Department of Corrections (CDOC) have been subject to judicial review under CRCP 106(a)(4), which allows litigants to obtain review of the quasi-judicial decisions of a broad range of lower governmental bodies, including, for example, zoning decisions made by local boards of commissioners or decisions made by licensing authorities. In February 2008, however, Rule 106.5 went into effect, providing a specific procedural framework for the review of decisions "resulting from a quasi-judicial hearing of any facility of the [CDOC] or any private facility in Colorado involving a CDOC inmate for events that occurred at the facility."[1]
Rule 106.5 cases are essentially a subset of the broader category of cases governed by Rule 106(a)(4). Except to the extent modified by Rule 106.5, the substantive and procedural provisions of Rule 106(a)(4) still apply to cases brought under Rule 106.5.[2] The most prevalent type of case filed by inmates governed by Rule 106.5 seeks review of disciplinary convictions under the Code of Penal Discipline.[3] Quasi-judicial CDOC proceedings placing offenders in Restrictive Housing-Maximum Security Status (formerly Administrative Segregation),[4] Sexual Violence Needs Classifications,[5] and Sex Offender Review of Termination from Treatment[6]are also reviewable under Rule 106.5.[7]
Filing and Service of Rule 106.5 Actions
A Rule 106.5 action is commenced by filing a complaint in the district court within 28 days of the final agency action to be reviewed.[8] Only the executive director of the CDOC and the warden of the facility where the quasi-judicial hearing took place are to be named as defendants, and the district court is required to dismiss any other defendants named.[9] A form complaint for Rule 106.5 actions is available on the Colorado State Judicial Branch website.[10] As indicated in the form complaint, because the executive director and warden are being sued only in their official capacities under Rule 106.5, it is unnecessary to name the individuals holding the office in the complaint.[11] Describing the defendants only by their official title eliminates the need to amend pleadings or substitute parties in the event the individuals holding the office change during the pendency of the action.
Rule 106.5 includes a mandatory venue provision requiring that the case be filed in the district court in the county in which the quasi-judicial action occurred, even if the inmate is no longer housed at that facility when the case is filed.[12] Usually there is little doubt where the quasi-judicial action occurred, and in most cases the correct venue will be the county in which the quasi-judicial hearing took place. However, on occasion an inmate may be transferred to another facility before the administrative proceeding is completed, and then participates in the hearing at the original facility by telephone. This type of ambiguity or simple ignorance of the venue provision in Rule 106.5 may result in an inmate filing his case in the wrong court. The consequences of filing in the wrong court depend on whether the venue provision in Rule 106.5 is construed as a jurisdictional requirement or merely mandates venue. To date, there are no published appellate cases addressing this issue. However, the Colorado Supreme Court's analysis of a similar venue provision in Associated Governments of Nw. Colorado v. Colorado Pub. Utilities Commission[13] suggests that the Rule 106.5 venue provision would not likely be construed as jurisdictional. The ultimate determination of this issue is potentially dispositive of the inmate's case. If merely a venue provision, the appropriate remedy when a case is filed in the wrong venue is to transfer venue to the correct county. On the other hand, if the provision is jurisdictional, the district court must dismiss the case for lack of subject matter jurisdiction.[14] Because, as a practical matter, the 28-day limit for filing the action under Rule 106.5 will usually have passed by the time a case is dismissed, the inmate would then be unable to timely refile the action in the correct venue.
Rule 106.5 cases are civil actions, and the complaint must therefore be accompanied by either the filing fee or a motion to proceed without prepayment of the filing fee (in forma pauperis). The motion must be accompanied by the inmate's account statement for the six-month period immediately preceding the filing of the civil action, certified by an appropriate official at the detaining facility.[15] A form motion is available on the Colorado State Judicial Branch website.[16]If the inmate's account statement shows that the inmate has sufficient funds to pay the filing fee, the court is required to deny the motion.[17] When the motion is denied, the inmate must pay the filing fee to avoid dismissal of the action. If the motion is granted, the inmate will be allowed to proceed without prepayment of the filing fee, but the court must forward a copy of the order to the CDOC requiring the CDOC to forward payments from the inmate's account until the filing fee is paid.[18]
Rule 106.5 contains a unique provision relating to service. If the inmate's motion to proceed in forma pauperis is granted, the court accomplishes service of process by emailing the attorney general, the executive director of the CDOC, and the appropriate warden (or their designees) a copy of the complaint along with a notice indicating "the fact of the inmate's filing and the date received by the Court."[19] If, however, the inmate does not qualify to proceed in forma pauperis and pays the filing fee, he is responsible for personally serving the attorney general and the defendants in accordance with CRCP 4(e)(10).[20]
Motions to Dismiss for Lack of Subject Matter Jurisdiction
Within 21 days after the attorney general acknowledges service, the defendant must file either a motion or an answer.[21] Motions to dismiss for lack of subject matter jurisdiction are typically filed by the defendants if a Rule 106.5 complaint was not filed within 28 days of final agency action.[22] The 28-day requirement is jurisdictional and cannot be tolled or waived.[23] "Thus, if a complaint is filed more than [28] days after the date the agency takes final action, the complaint must be dismissed for lack of subject matter jurisdiction."[24]
Final agency action occurs when the CDOC has completed the administrative process and has nothing further to decide.[25] For example, in the case of disciplinary proceedings, final agency action occurs when the CDOC denies the offender's administrative appeal.[26]However, a practitioner is well advised to consult the applicable administrative regulations, because what constitutes final agency action varies depending on the type of proceeding involved. For example, although in disciplinary actions final agency action occurs when the administrative appeal is denied,[27] when terminating sex offender treatment, the applicable regulation does not provide for an administrative appeal, so the decision of the SOTMP Termination Review Panel constitutes final agency action.[28] Also, in calculating when the 28-day period expires, it is important to be aware that "a pleading or paper filed or served by an inmate confined to an institution is timely filed or served if deposited in the institution's internal mailing system on or before the last day for filing or serving."[29] Thus, the date the inmate placed the complaint in the institution's internal mail system, rather than the date it was received by the court, determines the filing date for purposes of determining whether the complaint was filed within 28 days.
Understanding the scope of Rules 106.5 and 106(a)(4) is critical to determining both when a particular claim must be filed and whether the court has subject matter jurisdiction to review a claim under these rules. If the CDOC's action or decision was not quasi-judicial in nature, the court lacks subject matter jurisdiction to review the action under Rule 106.5 and/or 106(a)(4).[30] Quasi-judicial decisions typically result from a process that requires prior notice, a hearing, and action taken as a result of the application of the facts of a specific case to criteria established by law.[31] Purely administrative, legislative, or ministerial actions are not reviewable under Rules 106.5 or 106(a)(4).[32] To determine whether an action is quasi-judicial, courts look to the nature of the governmental decision and the process by which it is reached.[33] In the context of actions under Rule 106.5, this analysis requires a careful look at the applicable CDOC regulations governing the action taken to determine if the process involved is quasi-judicial in nature.[34]
In Garcia v. Harms,[35] the court of appeals discusses the interplay between the scope of Rule 106.5 and the filing deadlines of various claims in the context of judicial review of disciplinary actions. The court explained that when an inmate challenges the CDOC's quasi-judicial action, the claims fall within the scope of Rule 106.5 and must be filed within 28 days. "Due process challenges to the hearing procedure, challenges to the hearing officer's factual findings, and a...
To continue reading
Request your trial